The Dynamics of Constitutional Conventions in Westminster Democracies

Barry, Nicholas; Miragliotta, Narelle; Nwokora, Zim

doi:10.1093/pa/gsy027

Cited by 8 publications

(3 citation statements)

References 21 publications

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“…Even scholars more sanguine about judicial recognition, and even enforcement, of conventions take issue with the way the Court interpreted and applied precedents to arrive at its conclusion (Heard, 2014: 174-75). Some interpret the decision not as identifying an existing convention but as having changed convention (Barry et al, 2019).…”

Section: Constitutional Conventions and The Constitutional Architecturementioning

confidence: 99%

The Place of Constitutional Conventions in the Constitutional Architecture, and in the Courts

Macfarlane

2022

Can J Pol Sci

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The Supreme Court's recent invocation of the “constitutional architecture” in the Senate Reform Reference has led a number of scholars to question the status of constitutional conventions in the legal, as opposed to political, constitution. Has the Court, without expressly saying so, transformed at least some conventions into constitutional law? This would be a serious rupture, not only from existing precedent on the justiciability of conventions but also from the traditional understanding of conventions as binding political rules. In light of this recent scholarly debate, an exploration of the profound consequences of entrenching conventions in the legal constitution is warranted, as it implicates the meaning of constitutional conventions, their creation, their relation to law, and their enforcement. Judicial entrenchment of conventions would be a dangerous violation of the separation of powers and would have negative consequences for the functioning of Canada's system of government and for the future of constitutional change.

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Section: Constitutional Conventions and The Constitutional Architecturementioning

confidence: 99%

The Place of Constitutional Conventions in the Constitutional Architecture, and in the Courts

Macfarlane

2022

Can J Pol Sci

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“…Constitutional conventions in Westminster democracies are "non-legal, or informal, rules that regulate how political actors and institutions interact". 20 In Australia and elsewhere, conventions operate across a range of issues and areas of government, including ministerial responsibility, the office of Prime Minister, the role of the Governor-General, and the behaviour of political parties. 21 The authorisation of military deployments is no exception, since Australia's war powers are granted to the Executive by a convention established over decades of practice, rather than by the Constitution itself.…”

Section: Introductionmentioning

confidence: 99%

War‐Power Reform in Australia: (Re)considering the Options

Mulherin

2020

Aus J of Politics History

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The decision to go to war in Australia remains the prerogative of the Executive. The lack of parliamentary authorisation of perhaps the most significant decision a democracy can make has seen sustained, but unsuccessful, efforts to reform legislation. In the wake of the costly invasion and occupation of Iraq in 2003, repeated calls for legislative reform of Australia's war powers have failed to find traction amongst Coalition and Australian Labor Party (ALP) leadership. Lamenting the lack of transparency and accountability in the current system, those favouring legislative reform would see authorisation of combat missions placed in the hands of Parliament. However, given the lack of support from either of the major parties, any legislative reform remains unlikely. Given this impasse, this article argues that a compromise option, in the form of a new war‐powers convention, may be a small step towards democratising the decision of going to war. While not legally binding, this constitutional convention would represent an agreement by the major parties that overseas combat operations will be properly debated in Parliament.

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“…They cannot be changed unilaterally because conventions require the consent of the parties they affect. They are more likely to change incrementally and in ways that are difficult to notice, usually as a result of endogenous forces (Barry et al, 2018). This 'softening' of conventions is more likely in established democracies with resilient institutions, than is the occurrence of a crisis leading to radical change.…”

Section: The Basis Of Parliamentary Proceduresmentioning

confidence: 99%

Influences on parliamentary procedure in New Zealand 1935 - 2015

Wilson

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New Zealand parliamentary procedure has been reformed gradually over the 80-year period between 1935 and 2015. It has moved away from its Westminster roots in some important respects, but its origins remain recognisable. This thesis studies how parliamentary procedure in New Zealand has changed and what has caused those changes in the period 1935 to 2015.Taking an interpretive approach, this project examined change from the perspective of the participants in it. The thesis drew on the model developed by James Mahoney and Kathleen Thelen in ‘A Theory of Gradual Institutional Change’ (2010), which categorises rule changes as displacement of existing rules by new ones; layering of new rules on existing ones; drift in which rules remain the same but their effect is altered; and conversion where rules are unchanged but are reinterpreted. It found that the New Zealand parliament favours change by layering and displacement, which occur in institutions where discretion to interpret rules is low. Because of a preference for written rules and regular review of procedures, there is little scope for conversion of rules or drift in their meaning. There has been a greater use of layering of new rules on existing ones since the change to the MMP electoral system, reflecting an increase in the number of veto players and the greater complexity in reaching consensus about change. Over the period of the study, detailed work of scrutiny of the executive, law-making and House management shifted from the plenary to committees. Layering was the preferred way to make changes to rules governing select committees, reflecting caution changing a part of the parliamentary machine that is well-regarded. The creation of the House business committee has been enthusiastically received and many additional responsibilities layered onto it since its inception in 1996. This reflects the general preference for layering, post-MMP, and the nature of the committee lending itself to the addition of responsibilities, rather than replacement of one role with another. While elected members are sensitive to public opinion, almost all changes to rules and practice are proposed by members or parliamentary officials. New Zealand has institutionalised regular review of its rules and takes a consensus approach to rule changes. This approach generally ensures incremental change but also makes regular review and change part of parliamentary culture. Ongoing reform is likely in light of the desire of parliamentary actors to keep the institution relevant to the public, the institutionalised review process and continued proposals for change.

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The Dynamics of Constitutional Conventions in Westminster Democracies

Cited by 8 publications

References 21 publications

The Place of Constitutional Conventions in the Constitutional Architecture, and in the Courts

The Place of Constitutional Conventions in the Constitutional Architecture, and in the Courts

War‐Power Reform in Australia: (Re)considering the Options

Influences on parliamentary procedure in New Zealand 1935 - 2015

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